David Lee, an employee of the Department of Homeland Security, was tasked with investigating a foreign businessman accused of sex trafficking. Instead of doing his job, however, he did something very different: He solicited and received $13,000 in bribes to report that that the foreign in question was not involved in criminal activity. This case is not that unusual. In the last ten years, according to a report by the New York Times, immigration enforcement officials have taken over $5 million in bribes. They’ve sold green cards, ignored illegal activity, and even given information to the very drug cartels they are tasked with combating.
Shockingly, however, even after these officials are fired, they remain eligible for federal pensions. This is not unusual, but rather typical: most federal employees convicted of bribery remain eligible for their government pensions. This was not always the case: The original 1954 version of a statute called the Hiss Act (named for Alger Hiss, a State Department employee who was convicted of passing state secrets to a communist agent) prohibited the payment of a federal pension to a former federal employee who had been convicted of federal law offenses related to bribery and graft, conflict of interest, disloyalty, national defense and national security, and more generally to the exercise of one’s “authority, influence, power, or privileges as an officer or employee of the Government.” In 1961, however, Congress amended the law to prohibit the payment of pensions only for convictions for serious national security-related offenses. The reason for the change was the view that the original version of the Hiss Act went too far, leaving former federal officials (who had already been punished with termination, fines, and imprisonment), as well as their innocent spouses and children, facing the possibility of destitution. The additional punishment supposedly did not fit the crime, unless the crime directly concerned the national security of the United States.
The impulse not to over-punish is commendable, but the 1961 amendment to the Hiss Act was an overcorrection. The law should be amended to find a middle ground between the 1954 and 1961 versions. The federal government should have the authority to at least limit, and occasionally bar, pensions to certain public officials who have been convicted of a corruption-related offenses such as bribery and extortion. The case for doing so is as follows:
- First, the public has a right to expect their officials to be honest and to treat responsibly the authority entrusted to them. Officials who engage in bribery or extortion betray that public trust to enrich themselves. (At the state level, it is worth noting, it is the norm for public officials to lose their benefits if they are convicted of corruption.) Notably, however, the relationship of trust is tighter for some classes of public officials than others. The relationship of trust between an elected official and the citizen, for example, is fundamental to our very democratic system. In fact, Congress has seen fit to extend the Hiss Act to cover bribery by federal elected officials (even if the bribery was committed while the official was holding state or local elected office). But top administrators, tax officials, law enforcement officers, prosecutors, judges, and host of other officials are in positions of special trust in our government. Even if the Hiss Act properly does not extend to human resources or custodial staff, it should still be extended cover to those who regularly exercise the coercive authority of the state.
- Second, the perceived harshness of the 1954 Hiss Act can be tempered by allowing the ex-official to keep part of her pension, as is often done in many states. The size of a federal employee’s pension is determined in part by her years of federal service. A conviction for bribery could trigger a reduction in the number of service years for which the former employee gets credit, rather than termination of the entire pension. (This is similar to how military officials who engage in misconduct often have their rank reduced, so they can retain some but not all of their benefits.) The amount of the reduction in credit could be proportional to the seriousness and/or duration of the corrupt conduct.
- Third, the law should also be modified to provide more protection for innocent spouses. As it currently stands, the spouse of a convicted official can petition the Attorney General to restore her pension benefits if “the spouse fully cooperated with Federal authorities in the conduct of a criminal investigation and subsequent prosecution of the individual which resulted in such forfeiture.” This exception is extremely limited and essentially demands that the spouse betray his partner. It should be expanded to also allow the spouse to claim pension benefits as long as he did not participate in the corrupt offense and was unaware of it at the time it was committed. If this proves unpalatable, there should at least be an opportunity for spouses who meet these requirements to petition the court or Attorney General for pension funds in times of hardship.
In other circumstances, I would be hesitant to attach additional collateral consequences to a criminal conviction. But not here. Prospective public officials can be made aware of the collateral consequences of their criminal activity—including loss of their pensions—before they accept the positions. Further, public officials who wield the coercive authority of the state, unlike ordinary citizens, have a sacred trust relationship with the people over whom that authority is exercised. They should not be able to abuse that relationship and still reap the full benefits of a taxpayer funded pension. The Hiss Act should be amended to recognize this principle.
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Hiss was not convicted of passing secrets. He was convicted of perjury.